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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Iftron Technologies, Inc. ) File No. EB-08-SE-693
) NAL/Acct. No. 200932100067
) FRN 0018899377
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 26, 2009 Released: June 29, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find Iftron Technologies, Inc. ("Iftron") apparently liable for a
forfeiture in the amount of five thousand six hundred dollars ($5,600)
for willful and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 2.803 and
15.205(a) of the Commission's Rules ("Rules"). The apparent violation
involves Iftron's marketing of an audio/video transmitter that
operates on a restricted frequency and therefore is not eligible for a
grant of equipment certification.
II. BACKGROUND
1. The Enforcement Bureau's Spectrum Enforcement Division ("Division")
received
information that Iftron was marketing audio/video transmitters that are
capable of operating on a restricted frequency, 2.468 GHz. On October 10,
2008, Division staff conducted internet research on Iftron's website,
www.iftrontech.com. During the internet research, Division staff observed
that Iftron was offering for sale the Stinger Pro 2.4 GHz 500 mW
audio/video transmitter ("Stinger Pro"). By letter of inquiry ("LOI")
dated February 18, 2009, the Division initiated an investigation of
Iftron's marketing of the Stinger Pro, and instructed Iftron to provide
specific information regarding the manufacture, marketing, and
certification status of the Stinger Pro, as well as any other audio/video
transmitter device that it marketed in the United States. In its March 30,
2009, response to the LOI, Iftron states that it is the manufacturer of
the Stinger Pro, that it began manufacturing the device in June 2006, and
that it sold eight units of the device in the United States between June
2006 and July 2008. Iftron further states that in early July 2008, it
reviewed the frequencies on which the Stinger Pro transmitted and
discovered that the highest of the four transmitter frequencies used by
that device, specifically 2.468 GHz, was outside of the authorized amateur
radio frequencies set forth in Section 97.301 of the Rules.
2. Iftron states that upon discovering that the Stinger Pro mistakenly
transmitted on a frequency that was outside those frequencies that are
permitted for amateur radio use under Section 97.301 of the Rules, it
began modifying all transmitters shipped to U.S. addresses to ensure
that they were no longer capable of transmitting on 2.468 GHz. Iftron
also states that it modified the transmitter specifications of the
Stinger Pro on its website in July of 2008 to reflect the change.
Iftron claims that it does not manufacture or market in the United
States any other 2.4 GHz audio/video transmitter device.
III. DISCUSSION
A. Marketing of Unauthorized Equipment
3. Section 302(b) of the Act provides that "[n]o person shall
manufacture, import, sell, offer for sale, or ship devices or home
electronic equipment and systems, or use devices, which fail to comply
with regulations promulgated pursuant to this section." Section
2.803(a)(1) of the Rules provides that:
Except as provided elsewhere in this section, no person shall sell or
lease, or offer for sale or lease (including advertising for sale or
lease), or import, ship, or distribute for the purpose of selling or
leasing or offering for sale or lease, any radio frequency device unless
... [i]n the case of a device subject to certification, such device has
been authorized by the Commission in accordance with the rules in this
chapter and is properly identified and labeled as required by S:2.925 and
other relevant sections in this chapter.
Additionally, Section 2.803(g) of the Rules, provides in pertinent part
that:
[R]adio frequency devices that could not be authorized or legally operated
under the current rules ... shall not be operated, advertised, displayed,
offered for sale or lease, sold or leased, or otherwise marketed absent a
license issued under part 5 of this chapter or a special temporary
authorization issued by the Commission.
Intentional radiators, such as audio/video transmitters, are generally
required by Section 15.201 of the Rules to be approved prior to marketing
through the equipment certification procedures described in Sections
2.1031 - 2.1060 of the Rules.
4. Iftron admits that from June 2006, when it first manufactured the
device, to July of 2008, it manufactured and marketed units of the
Stinger Pro that were capable of transmitting on 2.468 GHz. Although
amateur radio equipment is not required to be certified, the Stinger
Pro, as sold in the United States prior to July 2008, was capable of
operating on a frequency outside of the authorized amateur radio
frequencies and, therefore, could not legally be marketed in the
United States as amateur radio equipment. Moreover, because this
device was capable of operation on a restricted frequency listed in
Section 15.205(a) of the Rules, the device could not comply with the
FCC's technical standards and therefore could not be certified or
marketed within the United States.
5. Accordingly, we find that Iftron apparently marketed a radio frequency
device that operates on a restricted frequency and therefore is not
eligible for a grant of equipment certification in willful and
repeated violation of Section 302(b) of the Act and Sections 2.803 and
15.205(a) of the Rules.
B. Proposed Forfeiture
6. Section 503(b) of the Act authorizes the Commission to assess a
forfeiture for each willful or repeated violation of the Act or of any
rule, regulation, or order issued by the Commission under the Act. In
exercising such authority, we are required to take into account "the
nature, circumstances, extent, and gravity of the violation and, with
respect to the violator, the degree of culpability, any history of
prior offenses, ability to pay, and such other matters as justice may
require."
7. Section 503(b)(6) of the Act bars the Commission from proposing
forfeiture for violations that occurred more than a year prior to the
issuance of a Notice of Apparent Liability. Section 503(b)(6) does
not, however, bar the Commission from assessing whether Iftron's
conduct prior to that time period apparently violated the provisions
of the Act and Rules and from considering such conduct in determining
the appropriate forfeiture amount for violations that occurred within
the one-year statutory period. Thus, while we may consider the fact
that Iftron's conduct commenced more than one year ago, the forfeiture
amount we propose herein relates only to Iftron's apparent violations
that have occurred within the past year.
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for the marketing of
unauthorized equipment is $7,000. At the time of Iftron's apparent
violation, Section 503(b)(2)(D) of the Act authorized the Commission
to assess entities such as Iftron a maximum forfeiture of $11,000 for
each violation, or each day of a continuing violation, up to a
statutory maximum forfeiture of $97,500 for any single continuing
violation.
9. The record establishes that between June 2006 until July 2008, Iftron
marketed a radio frequency device that is capable of transmitting on
2.468 GHz, a restricted frequency. Accordingly, Iftron is apparently
liable for a base forfeiture amount of $7,000.
10. We find that a downward adjustment from the $7,000 base forfeiture
amount is warranted, based on Iftron's demonstrated good faith efforts
to come into compliance prior to the initiation of an investigation by
the Commission. In July 2008, Iftron discovered that the Stinger Pro
was transmitting on a frequency that was outside of the permitted
amateur radio frequencies, and in the same month Iftron disabled the
ability of all of the Stinger Pro devices that were being sold or
marketed in the United States to transmit on the 2.468 GHz frequency.
We do not find, however, that a further downward adjustment is
warranted, based on Iftron's claim that it mistakenly believed that
the Stinger Pro conformed to Section 97.301 of the Rules. The
Commission has long held that a downward adjustment of forfeiture is
not justified where violators claim their actions or omissions were
due to inadvertent errors.
11. Based on all of the foregoing, we therefore propose a $5,600
forfeiture against Iftron for marketing radio frequency device that in
willful and repeated violation of Section 302(b) of the Act and
Sections 2.803 and 15.205(a) of the Rules.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's Rules, Iftron Technologies, Inc., is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of five
thousand six hundred dollars ($5,600) for marketing a radio frequency
device that operates on a restricted frequency and therefore is not
eligible to receive a grant of equipment certification in willful and
repeated violation of Section 302(b) of the Act and Sections 2.803 and
15.205(a) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Iftron Technologies Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
14. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Iftron will also send electronic
notification on the date said payment is made to Sam.Peoples@fcc.gov
and Ricardo.Durham@fcc.gov.
15. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and by first class mail, to Ira Faberman, President, Iftron
Technologies, Inc., 1895 3rd Avenue, Longmont, Colorado 80501-4763.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803 and 15.205(a).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Ira Faberman,
President, Iftron Technologies, Inc. (February 18, 2009).
Letter from Ira S. Faberman, President, Iftron Technologies, Inc. to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (March 30, 2009) ("LOI
Response") at 1-2.
Id. See 47 C.F.R. S: 97.301.
LOI Response at 1.
Iftron's website currently notes that units of the Stinger Pro available
in the United States transmit on 2.414, 2.432, and 2.450 GHz, and that
units that additionally transmit on 2.468 GHz are "available elsewhere."
See
http://www.iftrontech.com/2.4GHz-Transmitters/c44/p100/Stinger-Pro-2.4GHz-500MW-AVD-Transmitter/product_info.html
(last accessed June 23, 2009).
LOI Response at 3.
47 C.F.R. S: 2.801 defines a radiofrequency device as "any device which in
it its operation is capable of emitting radiofrequency energy by
radiation, conduction, or other means."
47 C.F.R. S: 2.803(g).
An intentional radiator is "[a] device that intentionally generates and
emits radio frequency energy by radiation or induction." 47 C.F.R. S:
15.3(o).
47 C.F.R. S: 15.201.
A certification is an equipment authorization issued by the Commission,
based on representations and test data submitted by the applicant. See 47
C.F.R. S: 2.907(a).
47 C.F.R. S:S: 2.1031 - 2.1060.
LOI Response at 2.
LOI Response at 1. Elsewhere in its response, Iftron admits that it sold a
total of 10 units of the Stinger Pro in the United States between August
31, 2006 and March 30, 2009, but states that all units of the Stinger Pro
that were shipped to addresses in the United States after July of 2008
were modified so that those units were incapable of transmitting on 2.468
GHz. Id.
See, Facilitating Opportunities for Flexible, Efficient, and Reliable
Spectrum Use Employing Cognitive Radio Technologies, Memorandum Opinion
and Order, 22 FCC Rcd 8053, 8058 (2007); see also, Pilot Travel Centers,
LLC, Notice of Apparent Liability, 19 FCC Rcd 23113, 23114 (2004)
("[R]adio transmitting equipment that transmits solely on Amateur Radio
Service ("ARS") frequencies is not subject to equipment authorization
requirements prior to manufacture or marketing.").
47 C.F.R. S:15.205(a). This section allows intentional radiators to
transmit only spurious emissions in the restricted frequency bands.
Section 2.1 of the Rules, 47 C.F.R. S: 2.1, defines spurious emissions as
"[e]missions on a frequency or frequencies which are outside the necessary
bandwidth and the level of which may be reduced without affecting the
corresponding transmission of information. Spurious emissions include
harmonic emissions, parasitic emissions, intermodulation products and
frequency conversion products, but exclude out-of-band emissions."
Marketing, as defined in 47 C.F.R. S: 2.803(e)(4), "includes sale or
lease, or offering for sale or lease, including advertising for sale or
lease, or importation, shipment, or distribution for the purpose of
selling or leasing or offering for sale or lease."
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful', ... means the conscious and
deliberate commission or omission of such act, irrespective of any intent
to violate any provision of this Act or any rule or regulation of the
Commission authorized by this Act ...." See Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388
(1991) ("Southern California").
Section 312(f)(2) of the Act provides that "[t]he term `repeated', ...
means the commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day." 47 U.S.C. S:
312(f)(2). See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362 (2001) ("Callais Cablevision") (issuing a Notice of Apparent
Liability for, inter alia, a cable television operator's repeated signal
leakage).
47 U.S.C. S: 503(b).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
47 U.S.C. S: 503(b)(6).
See 47 U.S.C. S: 503(b)(2)(D), 47 C.F.R. S: 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 1820,
1825 (2006), forfeiture ordered, 22 FCC Rcd. 1051 (2007) (forfeiture
paid); Globcom, Inc. d/b/a Globcom Global Communications, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner Transportation,
Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-71 (2000); Cate
Communications Corp., Memorandum Opinion and Order, 60 RR 2d 1386, 1388
(1986); Eastern Broadcasting Corp., Memorandum Opinion and Order, 10 FCC
2d 37 (1967), recon. den.,11 FCC 2d 193 (1967); Bureau D'Electronique
Appliquee, Inc., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
3445, 3447-48 (Enf. Bur., Spectrum Enf. Div. 2005), forfeiture ordered, 20
FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005) (forfeiture paid).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(D). The Commission has amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), three times to increase the maximum
forfeiture amounts, in accordance with the inflation adjustment
requirements contained in the Debt Collection Improvement Act of 1996, 28
U.S.C. S: 2461. See Amendment of Section 1.80 of the Commission's Rules
and Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
(2000) (adjusting the maximum statutory amounts from $10,000/$75,000 to
$11,000/$87,500); Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945
(2004) (adjusting the maximum statutory amounts from $11,000/$87,500 to
$11,000/$97,500); Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd 9845
(2008) (adjusting the maximum statutory amounts from $11,000/$97,500 to
$16,000/$112,500). The most recent inflation adjustment took effect
September 2, 2008. See 73 Fed. Reg. 44663-5. Iftron's apparent violations
occurred prior to this date and therefore are subject to the old statutory
forfeiture limits.
See e.g., Petracom of Texarkana, LLC, Forfeiture Order, 19 FCC Rcd 8096,
8097-8098 (Enf. Bur., 2004) (finding that a broadcast station licensee's
initiation of remedial measures to correct a violation prior to Commission
inspection of the station was a mitigating factor warranting reduction of
the forfeiture).
See e.g., PJB Communications of Virginia, Inc., Memorandum Opinion and
Order, 7 FCC Rcd 2088 (1992); Southern California, 6 FCC Rcd at 4387
(stating that "inadvertence ... is at best, ignorance of the law, which
the Commission does not consider a mitigating circumstance").
47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.
Federal Communications Commission DA 09-1428
2
Federal Communications Commission DA 09-1428